Law professor explains how dissenting justices can save Roe

For decades, defenders of abortion rights — from the American Civil Liberties Union (ACLU) to Planned Parenthood to the National Organization for Women (NOW) to feminist attorney Gloria Allred — have been warning that if enough social conservatives were appointed to the U.S. Supreme Court, Roe v. Wade could be overturned. And now, in 2022, it appears that the High Court will, in fact, be overturning that landmark 1973 ruling.

But law professor Ryan H. Nelson, in an article published by Slate on June 1, argues that there is a way for dissenting justices to save Roe: “Deny the Supreme Court a quorum.”

Justice Samuel Alito makes an argument for overturning Roe in a leaked majority draft opinion that Politico obtained a copy of and published on Monday night, May 2. In his opinion, Alito declares, “Roe was egregiously wrong from the start…. We hold that Roe and Casey must be overruled.”

The justices who joined Alito in that draft opinion in Dobbs v. Jackson Women’s Health Organization are Clarence Thomas and three Donald Trump appointees: Brett Kavanaugh, Amy Coney Barrett and Neal Gorsuch. And the four dissenters are Sonia Sotomayor, Elena Kagan, Stephen Breyer (who is retiring and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson) and Chief Justice John Roberts — dissenters who, according to Nelson, have a way to derail the overturning of Roe if they choose.

“Federal law and the Supreme Court’s own rules establish the quorum of justices necessary to do business at six,” argues Nelson, who teaches at the South Texas College of Law, Houston. “Put another way, unless at least six justices agree to hear a case, the Supreme Court cannot act. As such, a denial of quorum would deprive the presumptive five-justice majority in Dobbs from adopting Justice Samuel Alito’s leaked draft majority opinion, leaving Roe intact for now.”

The law professor notes that “deprivations of quorum are not novel.”

“For instance, in 2008, the Supreme Court agreed to hear American Isuzu Motors Inc. v. Ntsebeza, a case concerning a group of businesses accused of maintaining apartheid in South Africa,” Nelson explains. “Because so many large corporations were named defendants, four justices recused themselves due to conflicts of interest. As a result, the Supreme Court lacked a quorum, and the five remaining justices were unable to rule on the case.”

Nelson continues, “In such situations, federal law states that a majority of the remaining justices can either affirm the judgment of the lower court or, if they believe the lack of quorum is temporary, hold the case until the next term and decide it then. Accordingly, a majority of the five qualified justices in Ntsebeza voted to affirm the appeals court’s judgment, presumably because they did not foresee their fellow justices’ conflicts of interest abating. Moreover, justices can recuse themselves from any case for any reason.”

According to Nelson, Dobbs dissenters Roberts, Sotomayor, Breyer and Kagan “can recuse themselves despite their having no apparent conflict of interest.”

Many civil libertarians have pointed out that if the High Court overturns Roe, abortion won’t be the only right that is assaulted by social conservatives — who will also go after everything from contraception (Griswold v. Connecticut and Eisenstadt v. Baird) to same-sex marriage (Obergefell v. Hodges) to gay rights (Lawrence v. Texas) to one’s right to privately view sexually explicit adult entertainment at home (Stanley v. Georgia) to interracial marriage (Loving v. Virginia). If the High Court rules that Roe was wrongly decided, it could say the same thing about any of those other decisions.

Nelson, in his Slate piece, stresses that the implications of overturning Roe go way beyond abortion.

“If Roe falls, countless other fundamental rights will be on the chopping block,” Nelson writes. “And as Sotomayor warned at oral argument, overturning Roe would undermine the republic itself by fomenting an enduring ‘stench’ that ‘the Constitution and its reading are just political acts.’ In contrast, saving Roe would signal that, at least sometimes, this Court still upholds the rule of law, politics be damned. A Court whose legitimacy is on life support is better than a Court whose legitimacy has been aborted. For all these reasons, it is vital to prevent Roe’s downfall by any lawful means.”